is for registration in the Company's domestic branch of a U.S. incorporation, namely the E ** R ** E ** registered investment Inc., based in Wilmington, Delaware.
notifying the sole director shall submit to the founding charter of incorporation, the minutes of a board meeting of Incorporation, its pattern drawing and a confirmation of a U.S. law firm, in each case together with officially certified translation, above. According to these documents was
the E ** R ** E ** Investment Inc . the shareholders' agreement dated 17/03/2010 Founded in the form of a "Incorporation under the laws of the State of Delaware.
would use this application I indicate below, which aspects of the application of a domestic branch of a company not domiciled in the common room to be observed. According to § 254 AktG
a corporation based abroad has a branch to register in the country by its board of registration in the commercial register. Whether the foreign company falls within the definition of corporation, shall be governed by the legal structure of society. If the foreign company a corporation, must clarify their assignment be as mutually exclusive options for the registration of § 254 AktG and under § § 107, 112-114 GmbHG. A domestic AG are essentially related to the Stock Corporations including the U.S. member states ( Jabornegg / spirit in Jabornegg / Strasser , AktG § 254 II, paragraph 16, 17).
In this case, therefore, the approach described in § 254 AktG.
companies whose headquarters are located outside the EEA, in accordance with § 254 para 2 AktG necessarily appoint a permanent representative ordinarily resident in Switzerland. This
and board members have to deposit with the court a name signature. The application the certified copy of the Articles of Association and a certified German translation of the documents attached. as excerpts from a book or company comparable index - - As demonstrated in the application, the existence of the entity in accordance with § 12 para 2 Austrian Commercial Code, the appropriate documents for this purpose are enclosed.
case of a company from the non-EEA countries also the safety certificate in accordance with § 160 para 2 BAO is required.
According to § 254 para 4 AktG in the said registration in § 10 para 3 (statutory fixing any of Rights for name-bearer shares or vice versa), § 17 record (required statute content) and S 2 § 18 AktG (additional notice leaves or electronic media) stipulations required. Other items are
registration under § 254 para 5 AktG addition to the information according to § 12 para 3 UGB also those for § § 32 AktG and § § 3 and 5 FBG. According to § 12 para 3 UGB, the activities of the branch, the personal status of the entity, the register in which the entity is held, the registration number and those people who have power of representation for the domestic branch, to be entered.
In this particular case, the applicant, but a public certified translation of the charter in front, the founding document in the original but was only presented as a fax printout with the confirmation of a notary public, based in Delaware. Apart from being a mere facsimile not form complies with, and extends a mere confirmation of a U.S. notary public is not enough.
When issued by a notary public confirmation of the legal existence of a society are in fact a confirmation of how they can be made by anyone. Of a notarial deed in the Austrian sense can not even be in the approach of the question. A certificate of legal existence of Incorporation is essential.
In the U.S., the companies register, not by courts but by the respective secretary of state of the state in which the head office of the Corporation out. These authorities on request a "Certificate of Good Standing and Legal Existence " out with the proper formation of the company is established and those arising from the legally relevant facts which are necessary for the registration of the facts. In order for this Certificate has the probative value of a public document, it must be issued and authenticated by the competent U.S. authority and provided with an apostille. This instrument requires then also turn the certified translation into German ( Czernich GesRZ in 2002, 19 f).
this requirement have to be submitted to both the social contract in the original and the required certificate of legal existence of the foreign company match.
This is the case nor the following aspect:
from the present "fax contract" results in the following corporate objective of the Corporation:
"The purpose of the corporation is to engage in any lawful act or activity for Which corporations may be organized under the General Corporation Law of Delaware "
In this broad version of the article are therefore also banking and insurance operations intended to allow either the business object must be narrower or the appropriate regulatory approvals from the banking, securities and insurance regulators to be presented.
The registration of a local branch of a foreign entity, the notifying company has also demonstrated that the specific branch within the territory is actually already built. Among them is not to understand that the actual operation of the branch for the necessary facilities for the entirety must already be present. But have spatial and organizational measures be taken to allow the conclusions that in fact a permanent establishment is created which allows a continuous (not just occasional) and largely become independent business within the meaning of the corporate purpose (OGH 6 Ob 43/04y, 44/04w).
In this particular case, the applicant will therefore have the following qualifications must submit:
- 'Certificate of Good Standing and Legal Existence' of the secretary of state of the U.S. state of Delaware including apostille, from which the existence of society and the power of representation of each Institutions must show with a certified translation into German
- original certificate of incorporation or certified copy, the latter also comply with the just mentioned formal conditions must
- clearance of the domestic tax authorities regarding the branch
- justification of the establishment of the domestic branch (for example, by lease agreement, official certificates)
- adapting the business object or notice of approval of financial market supervision
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